1. Spatial Planning - an Issue at National
and Supranational Level *.1. Recent Renaissance of Spatial Planning *1.2. Some Historical Remarks *2. Antithetical Models of Spatial Planning *2.1. The French Aménagement du Territoire and
the German Raumordnung as Protagonists *2.2. European Spatial Development Policy as a Synthesis
? *3. Spatial Planning within a Constitutional and
Legal Pattern of Powers and Jurisdictions *3.1. Differentiation between Comprehensive and Sectoral
Planning *3.2. Spatial Planning - Programme-, Plan-, Project-related
? *4. Reasons for Spatial Co-ordination *4.1. Potential Spatial Planning Issues *4.2. Motivations for Joining/Refusing to Join the
Co-ordination Procedures *4.3. Data Collection for Spatial Analysis and Control
of Spatial Efficiency *4.4. Arguments for Spatial Planning at Supra/ International
Level *4.5. Diversity and Subsidiarity as Restricting Principles
*5. Legal Effects of Spatial Co-ordination *6. The Role of Law with Respect to Spatial Planning
*6.1. Pattern of Powers and Jurisdiction as a Legal
Framework for Co-ordination *6.2. Impact of Environmental Law on Spatial Planning
Legislation *6.3. The Role of the Lawyer : "Notary", not Initiator
of Changes *7. Convergence of Spatial Planning Systems? *

Carl-Heinz David

Extending Spatial Planning From National to Supra-National
(European)Scale.*Which Issues have the EU-Memberstates´
Spatial Planning Legislations to Face ?

1. Spatial
Planning - an Issue at National and Supranational Level1.1. Recent Renaissance
of Spatial Planning

Recently the European Conference of Spatial Planning Ministers (CEMAT)
and the Directorate General XVI of the EU Commission have finalised the
document of a European Spatial Development Perspective (ESDP) as a first
step on the way to a European Spatial Development Policy. In 1999 an OECD
Conference signalled an international interest on the issue of spatial
planning. In particular the EU-member states, but as well non-member states
have to respond in terms of legislation, governmental organisation and
administrative structure to spatial planning activities on supra-national,
e.g. EU-level. This applies in particular to those, which are candidates
for EU-membership, as many east-European countries do. Different to those
west-European countries, which dispose since the mid-sixties on proper
sophisticated spatial planning systems which now have to undergo changes,
those countries earlier behind the Iron Curtain have the need and the choice
to react less restrictedly to the forthcoming supra-national spatial planning
requirements based on earlier west-European experiences. This paper tries
referring such experiences to draw lessons for adequate responds.

1.2. Some Historical Remarks

Spatial Planning experienced an earlier boom during the mid-sixties.
There was planning euphoria, at least in Europe. Politicians, scientists
and administrators trusted in planning as a tool to achieve a balanced
development of economic activities to create equivalent living conditions
in their respective national territories. The idea, how this could be achieved
varied across Europe from country to country. The political and legal terminologies
created in the various countries differed considerably.

Spatial planning was considered to be a more or less inner-governmental,
national task. The translation of the various foreign terms into the English
language gave the illusion that spatial planning was more or less the same
political business in all countries. "Regional planning" or "comprehensive
regional planning" was at that time the common translation of what the
French called planification, the Dutch ruimtelijke ordening
and the German Raumordnung.

This changed when politicians, in particular those belonging to regional
movements in the centralised countries, became aware of the opportunity,
that by applying the terminology of regional planning their political targets
of greater regional self-determination and independence could be supported.
Only the Committee of the Regions, mentioned in Art. 198 a-c of the EU
Treaty still keeps the idea of regionalism in terms of European law alive.

The reaction was to avoid any terminological nexus with regionalism
and to create the terminology of spatial planning which is today the generally
accepted designation for what we are discussing at this conference. Changing
the terminology made aware that spatial planning was not just a political
task, but involved additional constitutional, legal, institutional and
organisational aspects.

Though economists and planners considered spatial planning to be exclusively
their business, the institutional aspects received rising importance and
involved lawyers to transfer the political purposes into the constitutional
and legal framework.

First steps towards extending spatial planning to a supra-national (European)
scale were already made in the seventies, when an informal exchange of
views based on some scientific research took place between the West European
governmental agencies. It became obvious that there were different political
approaches to spatial planning behind the English terminology. But the
exchange of information did not result in a harmonisation of the planning
practices.

The seventies brought another change of a global scope, when environmentalism
entered the political stage. A new comprehensive public task was launched,
at least in Germany, to compete with the comprehensive task of spatial
planning. Spatial planning politicians and practitioners tried to make
clear that environmental planning could be integrated into spatial planning,
but environmental planning became something different. In many respects
environmental planning covered the same or at least similar spatial subjects
and of course the same territories. Environmentalism attracted major political
attention, which now diminished the political importance of spatial planning
and increased the importance of comprehensive and sectoral planning tasks
related to environmental aspects.

Until today spatial planning, at least in Germany, politically suffers
from the competition with environmental policy, though a recent increase
in political appreciation of spatial planning is due to the awareness that
spatial aspects cover specific issues and thus go beyond the environmental
issue.

2.
Antithetical Models of Spatial Planning

2.1.
The French Aménagement du Territoire and the German Raumordnung
as Protagonists

The specific content of spatial planning is not at all clear. Various
countries, governments, supra-/international organisations, professionals,
experts, political and administrative actors (ministries, departments,
parliamentarians etc.) have quite a different understanding of what spatial
planning means and, in addition to that, this differs with respect to the
various territorial levels to be considered (e.g. sub-regional, regional,
national, supranational, international, global) - a nightmare for a scientific
discussion.

The trend in the eighties towards extending spatial planning activities
to the European level affected the various kinds of sectoral planning more
than the nationally orientated spatial planning systems. This applies in
particular to networks and systems widening beyond the national borders,
as for instance roads and highway systems, other communication systems,
the coal and nuclear energy plant systems, the general and nuclear waste
disposal systems etc. In extending the scope of their planning activities
beyond the national borders they brought a European dimension to planning;
in most cases they even disregarded EU borders by including non-EU member
states, too, and sometimes expanded at a world-wide scale.

But in most cases the different national planning systems – legislation,
administration and planning practice – scarcely responded adequately to
the changing European and international context of the specific public
and private planning activities.

A new era of "Europeanisation" began, when the EU extended its activities
to political fields not explicitly mentioned as a specific task, jurisdiction
or power transferred to the EU in the European Treaty. Environmental protection
was the first political area of the widened EU interest; later the political
field marked as regional policy was extended to a more complex policy now
marked as "economic and social cohesion". These new comprehensive and complex
areas of political activity gave rise to legal and political collisions
both in relation to the jurisdiction remaining with the member states and
in relation to the internal distribution of powers and jurisdiction within
the EU, in particular between the Directorates General XI and XVI mainly
involved.

The different approaches to spatial planning in the various member states,
for which the French aménagement du territoire and the German
Raumordnung appear to be two antithetical examples, were rather
impeding than helpful in achieving common political initiatives for an
EU spatial planning policy. Furthermore, the various EU member states had
different political interests in participating in the various EU funding
programmes within the various EU policies. It was obvious that a common
European Spatial Development Policy would have considerable influence,
if it became legally and politically effective.

The French and the German spatial planning approaches both have in common,
that they are targeted to reduce existing spatial disparities in their
countries.

Roughly spoken the French aménagement du territoire is
designed to do this by direct programming of improvements in the technical,
communicational, social and cultural infrastructure through central government
investment activities.

The approach of the German Raumordnung is more indirect, as the
Federal Government does not have jurisdiction of the planning and implementation
of the regionally and locally needed infrastructure, because these are
within the jurisdiction of the federal states (Länder). Even
the spatial planning programmes and plans (Pläne und Programme
der Landesplanung) are prepared by the Länder; the Federation
has only legislative jurisdiction over a legal framework. The Supreme Federal
Constitutional Court only acknowledges genuine federal spatial planning
jurisdiction in exceptional cases, if a national planning task cannot effectively
be carried out by the Länder, e.g. possibly with respect to
European or global issues. Furthermore, the Federal Government is in charge
of specific sectoral tasks, as for instance highway planning. Anyway, the
pattern of powers, jurisdiction and funding within the federal German system
is perhaps more complicated than it is in other countries. In Germany spatial
planning has the function to co-ordinate activities at federal, federal
state and regional levels with binding effects on federal, federal states
and local authorities. The legal argument for the binding effect is that
spatial planning is comprehensive and therefore has to precede sectoral
planning activities.

Unlike regional policy or other sectoral policies, spatial planning
(in Germany) as a co-ordinative function is not equipped with a budget
to implement certain proper (investment) programmes or projects but has
a pure co-ordination function. The co-ordinator shall not compete politically
with programming, planning and implementation activities of the policies
to be co-ordinated. That is why the difference between comprehensive and
sectoral planning is so vital for the German system.

The final result of a co-ordination procedure is considered to be mutually
binding. Not the spatial plans and programmes as a whole are binding, but
only those designations in it which have the legal character of a goal.
Within the system of goals, the addressees which all participated in the
co-ordination procedure and had the opportunity to make representations,
keep a considerable flexibility of acting. Within the co-ordination procedure
which takes a long time nearly all conflicting interests are usually brought
to a balance. According to German experience the parties involved considered
themselves more bound by the mutually achieved compromise and the respective
agreement than by the legally binding effect attributed by the (German)
law to the spatial planning goals.

2.2. European Spatial Development Policy
as a Synthesis ?

This is not the place to recollect the history of the European Spatial
Development Policy.

The present discussion on the European Spatial Development Perspective
mentioned before is focusing on a purely indicative character of the ESDP.

Because of the current structural vagueness of the ESDP, it is hard
to say whether this is more a response to the French or to the German approach
to spatial planning. Anyway, the EU cohesion policy approach shows many
similarities with the French aménagement du territoire approach
in so far as both policies aim to control major budgets for the implementation
of their policy. On the other hand, the German approach appears better
to apply a broader view of considering and evaluating the future overall
development of the various regional entities within the whole territory
to be considered, a broader political view, which is felt to be lacking
at present.

The German initiative to establish a European Spatial Development Policy
aimed at establishing an European Spatial Development Policy according
to the German spatial planning model, based on a mutual agreement of the
member states involved with only a rather incidental participation of the
EU Commission in pursuing the principle of subsidiarity (Art. 3 a of the
EU Treaty). This did not find much acceptance, neither with the other member
states nor with the EU Commission. The Commission interprets the principle
of subsidiarity in such a way, that jurisdictions of the member states
only apply if no jurisdiction of the EU at all appears applicable. So at
present, the ESDP does not indicate a political agreement on a model of
spatial planning synthesising the major antithetical EU member state approaches.
Rather it can be designated as a minimal solution.(see chapter 6).

3.
Spatial Planning within a Constitutional and Legal Pattern of Powers and
Jurisdictions

Any spatial planning co-ordination activity has to be considered against
the background of the existing pattern of jurisdictions and powers involved.
There exist various already organisational structures on national, supra-
and international level, to which the comprehensive and sectoral tasks
are assigned in complicated, various, overlapping ways, which are often
reflected in the composed designations of the ministries (e.g. ministry
for transport and building). A difference in terms of jurisdictions between
supra- and international organisations might be that the supranational
organisation received a transfer of jurisdictions from their member states,
which in so far have lost their former sovereignty and the implied jurisdictions
and powers.

Though the specific spatial planning criteria are not clear at all,
it is undisputed that spatial planning does not have a super planning function,
able to replace and to precede all other (sectoral) planning and administrative
functions. On the other hand, there are no co-ordination tasks without
an orientation to a substantial content contained in principles, goals,
targets etc. They must be explicitly known to both: the co-ordinator and
the addressees of the co-ordination to become effective.

3.1.
Differentiation between Comprehensive and Sectoral Planning

The differentiation between comprehensive and sectoral planning appears
to be a general issue of structuring decision procedures within governmental
systems, not only in Germany. There exists a distribution of jurisdictions
which is related to the classical ministerial structure, but in addition
to this, there is the need to amalgamate the individual political aspects
into complex political visions, which spatial planning does with respect
to specific aspects, such as land and land development.

Co-ordination is needed both horizontally and vertically. Horizontally
means that the department or sub-department in charge of the co-ordinative
task has to achieve this within their own departmental or ministerial organisational
structure. Ministries, departments, commissions, directorates, even their
sub-units are in terms of co-ordination not at all to be considered as
monoliths. Vertical co-ordination refers to their affiliated inferior regional
or local branches and to other public bodies, which, though they might
have constitutionally or by law a certain independence, (as local governments
do in Germany) are considered as inferior levels with respect to the co-ordinating
body.

The pattern of powers and jurisdiction in which spatial planning activities
have to fit in varies considerably from country to country and so the resulting
difficulties appear to be unique from country to country. They become even
more complicated if the pattern extends to supranational organisations,
which both internally and externally in relation to their member states
have to cope with a difficult network of jurisdictions, powers and financial
relationships, e.g. through funding programmes. So spatial planning becomes
increasingly difficult, the higher the organisational level of co-ordination
is to be considered.

Spatial planning does not only affect other land-use related planning
activities but also the implementation of spatially relevant programmes
and projects and the targeting of public funds towards certain areas. The
control of the spatial allocation of public funds becomes increasingly
important, if national, supranational, international or even global spatial
co-ordination has to be effected. This means that at higher levels of spatial
co-ordination spatial planning and the allocation of public funds become
closely connected.

The German Federal Spatial Planning Act addresses this by explicitly
saying that spatially relevant planning and implementation measures including
public investments are the addressees of spatial planning. "Spatially relevant"
is defined as "what consumes land or what has implications for spatial
development".

As in an increasingly globalised world the classical departmental organisation
and respective allocation of public tasks no longer enable governments
to cope with the complex problems they are faced with, the differentiation
between comprehensive spatial planning and sectoral activities has lost
much of its function as a model to explain the pattern of powers and jurisdiction.

Thus many sectoral public tasks are today carried out in a comprehensive
way, e.g. highway schemes take into account ecological and economic aspects.
On the other hand, specific comprehensive tasks exist, such as spatial
planning or environmental protection, and in addition to this new comprehensive
political tasks are launched within the political process. It appears to
be a general political strategy to change the pattern of existing departemental
responsibilities and jurisdictions according to new political goals pursued
by creating new complex fields of comprehensive policies. At EU level,
the launching of the policy of economic and social cohesion appears to
be an example. But national examples could be added and the newly combined
designation of departments or ministries reflect the political approach.
The renaissance of spatial planning could emerge as another example of
a synthesising political approach.

In order to cope with the specific conflicting interests with respect
to other powers, jurisdictions or public tasks involved which differ in
more centralised, federal and within supranational systems (e.g. the EU)
and relative to each-other, a spatial development policy is required which
is innovative and at the same time allows a synthesis within the various
governmental and planning systems involved.

3.2. Spatial
Planning - Programme-, Plan-, Project-related ?

Theoretically only spatial planning related to the whole territory allows
a coherent approach of a comprehensive spatial vision. Thus it would not
be sufficient if it were only related to individual designated areas (
island planning) . Also, theoretically all spatially relevant public sectors
should be included in the spatial planning consideration. The restriction
on single aspects or respective programmes would not be compatible with
the idea of comprehensive spatial planning. But in practice these ideals
will not be realised and therefore plans are elaborated for restricted
purposes and for parts of or selected areas etc.. This can collide with
sectoral planning activities and rivalries sometimes appear as a consequence.

For instance, there is a discussion in Germany, whether a (federal state)
general waste disposal concept should be prepared by spatial planning authorities
or by the authority /ministry in charge of waste affairs, a matter, which
in addition is subject to EU legislation; thus three levels of legislation
(EU, national and federal state) are involved. Or it is disputed, how far
the central-place concept and major development axes connecting the central
places are binding for the Ministry of Transport and its planning of the
(federal state wide) road and highway network (with indications for road
construction priorities). At EU level the DG XVI report "Europe 2000+"
addresses the European highway network structure in the framework of European
spatial planning.

This raises the question whether the differentiation between comprehensive
and sectoral planning still applies. The pattern of powers and jurisdiction
rather needs a case-to-case consideration for political and legal assessment,
for instance what task spatial planning should be in charge of, what share
of responsibilities with other organisational units in charge of sectoral
tasks appear appropriate with respect to what specific procedural and organisational
measures should be taken.

The elaboration of (spatial planning) programmes and plans (this also
applies to the urban planning level, which is excluded in this paper) is
obviously expensive in terms of time and resources needed. Therefore, there
is a rising tendency to replace time-consuming programming and planning
by ad hoc assessment procedures. They have the additional advantage, that
they are closer to the actual problems to be solved. For environmental
purposes a legal requirement already exists for certain major categories
of cases to execute environmental assessment procedures. According to German
experiences the environmental assessment does not sufficiently address
the specific spatial issues, so that there is a need for additional spatial
assessments (Raumordnungsverfahren). But it must be taken into account
that such spatial assessment procedures require the existence of spatial
principles, goals and targets (in general contained in programmes, plans
or other documents) as
criteria for the assessment.

4. Reasons for Spatial Co-ordination

Spatial planning has always been ideologically connected with the rationality
of politics. Because of the binding, in particular, self-binding effects,
politicians and government executives must have good reasons for joining
spatial co-ordination initiatives. But it can be also rational to refuse
to join. Nevertheless, there can be political and legal reasons to enforce
certain widely agreed spatial planning goals or targets against the resistance
of a few and to provide legal tools to do this.

4.1. Potential
Spatial Planning Issues

To provision of equivalent living conditions in the various parts of
a territory (inner-regional, interregional, national, supranational) in
line with the abolition of existing disparities is often considered to
be the key goal of spatial planning. Recently the requirement of sustainable
development appears to have replaced the aspect of equilisation. Depending
on what spatial issues are politically assessed to be of major importance,
the emphasis might range between spatial issues on urban congestion problems
(within the EU this applies to the northern countries) or those related
to certain development deficiencies, e.g. due to agrarian structures etc.
(within the EU this applies to the Mediterranean countries), in many variations
and combinations. The aspect of spatial equalisation might appear under
various designations as cohesion policy, regional policy, general economic
and financial policy. As political and scientific terminologies of the
various foreign languages differ all translations are to a certain degree
imprecise.

Anyway, at supranational level the EU Commission does not have explicit
jurisdictions over spatial planning. But various EU policy fields, in particular
social and economic cohesion, environmental protection, or agriculture
etc. and in particular their respective various funding programmes are
obviously related to the political issues of spatial planning. The allocation
of EU funds tends to undermine the distribution of powers and jurisdictions,
as it might initiate political activities disregarding the internal constitutional
and legal member-state patterns.

4.2.
Motivations for Joining/Refusing to Join the Co-ordination Procedures

The aspect of equalisation will in general be widely agreed by both:
those politically and administratively in charge of the whole respective
territory and those representing (sub-) regional areas with respective
deficits to be balanced. Those who expect to be the net payer for the balance
will accept such contributions only to a certain degree, to which this
appears politically acceptable for them, e.g. for reasons of rationality
or solidarity. So spatial planning policy is obviously related to the present
debate on the Agenda 2000.

A general aversion to spatial planning results from the mid- and long-term
(self-)binding effects which restrict the discretion and liberty to politically
react to changing political situations.

4.3.
Data Collection for Spatial Analysis and Control of Spatial Efficiency

The comprehensiveness of spatial planning requires scientific approaches.
The improvement of the quality of governmental action by rationality is
a major argument for spatial planning. This can only be done based on the
collection and analysis of data in various fields of spatial relevance.
In particular prognostic techniques have to be applied. The scientific
results sometimes have effects not intended by the researcher and are used
for purposes for which they have not been elaborated. So both, the kind
of data to be collected, the statistical techniques and the results of
the analysis tend to be very disputed. According to German experiences,
for instance, the establishment of land registers showing the existing
infrastructure resources faced major resistance from those authorities
who had to provide the information. Furthermore, the collection and analysis
of data on public expenditure turned out to be very difficult to handle
administratively.

Though the control of the efficiency of spatially relevant programmes,
projects, measures or public investment is a major argument for spatial
planning, evaluation efforts so far have only had limited political success.

The requirement of periodical reports on the results of spatial policy
(Raumordnungsberichte), which in Germany have to be prepared at
federal and federal states level, are scarcely usable as a control tool
but provide a comprehensive documentation of certain spatial planning policy
aspects of the respective government. The preparation of the reports is
of more value for internal governmental organisations than a valuable information
for a wider general public. Efforts to synchronise the tables of content
of the various (federal states) spatial planning reports in order to allow
a cross efficiency control, have failed so far.

4.4.
Arguments for Spatial Planning at Supra/ International Level

The economic theory of federalism tries to determine the functions to
be left to the federal level in federal states, such as Germany or the
US. The theory appears to be similarly applicable to the functions which
supranational organisations, such as the EU, should exercise. It gives
an orientation on powers and jurisdictions that should and can be transferred
by the member states without dismantling their legal status as states with
independent legislative and executive powers.

Based on this theory, the following functions appear to be relevant
as tasks to be transferred to the higher level respective to spatial planning:

the pursuit of an equalising policy to reduce the disparities
structuring the trans-member state communication networks
the protection of common goods and common pool resources
ensuring cross-border co-operation at the internal and external national
frontiers
(involving EU- and non-EU member states).
These general criteria are not very distinctive and allow a wide range
of interpretation. Anyway, the theoretical approach might help to restrict
the expansion of powers and jurisdictions of superior authorities.

It might be of interest, that in 30 years of spatial planning practice
in Germany, no case occurred in which federal spatial planning would have
been justified by an urgent reason, which underlinded that only the Federal
Government would be able to establish the programme or plan and that this
could not be left to the co-operation of the federal states. Recently a
federal spatial planning involvement was accepted by the federal states
enabling the federal government to spatially manage issues referring to
German reunification and to possible future European issues.

4.5.
Diversity and Subsidiarity as Restricting Principles

Equalising spatial policies could reduce the regional diversity which
is politically desirable. Thus maintaining the spatial and regional diversity
is a major restriction for equalisation policies.

In an attempt to halt the crawling expansion of EU powers and jurisdictions
intensified by the EU system of funding development, the principle of subsidiarity
was formulated and incorporated in Art. 3a of the EU Treaty. This has the
function to better protect the autonomy of the member states and their
governmental structures, which in Germany applies in particular to the
constitutional role of the federal states. They are not incorporated as
member states in the EU and are only represented at EU level in the Council
of the Regions, which allows only restricted political influence in spatial
planning matters. The political appreciation of the Council of the Regions
differs considerably in the various member states depending on their political
view towards regionalisation.

5.
Legal Effects of Spatial Co-ordination

Neither the trust that co-ordination will occur by itself, nor the optimism
that co-ordination will be achieved by strong legal instruments and organisation
appear to be the basis for a successful model of spatial planning. Law
and practice of spatial planning have to keep within these extremes.

The German model of Raumordnung introduced in the mid-sixties
is based on the idea of a legally binding co-ordination, but with a restricted
intensity for various inner-constitutional reasons; the model changed considerably
in the meantime. Political aspects of reducing the legal effects have gained
more and more importance. But the existing legal framework still plays
an important role in stabilising the administrational organisation. It
is periodically adapted according to the political changes by amendments
of the federal and federal states legislation.

At European level just the opposite approach has been adopted: Here
a legal model is used which attributes only an indicative effect to the
programming document (European Spatial Development Perspective). There
have been various discussions in the past to amend the EU Treaty to provide
a European Spatial Development Policy with a legal basis; but so far no
agreement could be reached on how to achieve this; the political interests
involved were too controversial.

The indicative character of the ESDP could lead to the wrong impression,
that the political discussion is taking place beyond any legal determination.
Even though the content is not formally legally binding, the ESDP is based
on an agreement made by the EU members of the European Conference of Spatial
Planning Ministers (CEMAT) and the EU Commission`s DG XVI, applying rules
of procedures which were applied by CEMAT during the years of political
activity and so implicitly agreed by the member states (so called "acquis").
The co-operation with DG XVI shows some formalisation in so far, as the
EU Commission provides funds for a secretariat. But so far no clear decision
has been taken to determine the legal status of spatial planning within
the existing pattern of EU tasks and jurisdictions. Already the phrase
"spatial development planning" allows a wide range of interpretation, as
this terminology refers to no exact parallel terminology applied by the
member states to designate a specific field of policy which they claim
to be in charge of.

The terminology applied to the form in which spatial planning decisions
are taken, e.g. programme, perspective, plan, scheme, spatial assessment
etc. does not say much about the legal quality of the respective decision
or document.

Spatial planning takes place in a sphere between legislation and executive
power. German experiences show that it does not make much sense to chose
high-ranking legal forms as a law or as a formal statutory instrument for
planning purposes, hoping this would increase the co-ordinative effect
of the document. On the contrary such efforts increase the resistance of
authorities reluctant to be co-ordinated.

But of major importance are the procedures applied to the preparation
and the adoption of spatial planning decisions, because the fairness of
these procedures finally justifies that the parties involved have to keep
within the resulting co-ordination.

It is disputed whether spatial planning needs public participation allowing
citizens to be formally involved in the co-ordination procedures, as spatial
planning is mainly a form of inter-governmental planning. In particular,
the involvement of local government authorities in the procedures safeguard
democratic participation. Public participation in high-level spatial planning
discussions might be relevant to improve the general political relevance,
but appears not to be indispensable in terms of democracy. The procedural
details should be left to the respective country and should not be determined
generally. To let all local authorities, which within the model of representative
democracy represent the interests of their citizens, participate
in the planning procedure becomes already difficult when spatial plans
are prepared at federal-state level. The participation in the preparation
of national and supranational spatial planning documents will produce even
more procedural difficulties.

Procedural and organisational regulations tend to have supplementary
functions in this context: The participation of single authorities can
be less intensive, if they are represented in the council of the public
body which is in charge of the preparation of the plan.

As the effects of spatial planning might be long-term and go far beyond
the election period, for which the government its mandate, spatial planning
decisions with guideline functions might require the involvement of the
parliament and cannot be left entirely to the discretion of government
executives. Recently the legal question was raised whether the involvement
of supranational and international organisations in spatial planning should
require that basic democratic principles are observed by these institutions,
as for instance the separation of parliamentary, executive and judicial
powers, the application of the rule of law or the parliamentary legitimacy
of legislative acts.

Self-binding effects deriving from spatial co-ordination represent strong
obstacles, which keep independent states or supra/international organisations
from joining political or legally binding co-ordination procedures. Spatial
planning can only cope with this problem by reducing its involvement to
the least possible degree of impact on the autonomy of the respective departments/
ministries/ directorates/ sub-units.

6.
The Role of Law with Respect to Spatial Planning

6.1.
Pattern of Powers and Jurisdiction as a Legal Framework for Co-ordination

Like other co-ordinative tasks, spatial planning needs to be adapted
to the pattern of powers and jurisdictions involved. In general this has
to be done explicitly by amending the law, sometimes agreements or treaties
will form a sufficient base. Changes in so far need political compromises
to modify the existing patterns.

A review of the changes in spatial planning law and practice in neighbouring
European countries during the last 10 or 15 years might be summarised as
follows: the changes were more determined by inner-state considerations
than by supranational, international or even global impacts. Even many
European harmonisation effects have been caused by rather home-orientated
effects.

For instance the CEMAT discussion on the European regional development
policy appears to be determined by the efforts of member state protagonists
to keep their inner-state spatial planning system effective and to try
to expand this to the higher European level, rather than vice versa European
trends have genuinely effected changes in the national law and practice
of spatial planning. The discussion on the ESDP is characterised by efforts
to reach a minimal short-term compromise leaving open whether the agreement
on this compromise is the preliminary end of a political initiative launched
and promoted under various EU presidencies, or whether this is only a temporary
first step in developing spatial planning towards a far-reaching public
task of a European dimension.

The control of specific land uses and land-use planning loses its importance
at supra- or international levels of spatial planning. The focus is here
more on the distribution and allocation of financial resources of spatial
relevance. An exception might be in so far to keep certain corridors free
from incompatible land uses and to safeguard certain cross- and connection-points,
e.g. for the communication networks of European scale; but even in these
cases detailed sectoral planning will remain the responsibility of the
respective territorial authorities.

There appears to be a tendency to transfer planning responsibilities
for major projects of national or supra-national interest -and with it
the respective jurisdiction- to the highest level possible in order to
avoid adminstrative reluctance and delays due to judicial control procedures.
Thus the EU Commission under certain conditions claims jurisdiction for
fauna, flora- and habitat protection schemes.

6.2. Impact
of Environmental Law on Spatial Planning Legislation

There have been various impacts from the European law on the member
states, e.g. the German (spatial) planning legislation. These impacts were
not effected by a European spatial planning policy but by various EU environmental
policy and legislation activities which require that member states transfer
respective EU directives into national law. In particular the EU directive
on the conservation of fauna, flora and habitats and the directive on environmental
impact assessment required difficult national codification activities.
Another EU directive on the environmental impacts of plans is still under
EU consideration, but will presumably have major impacts on the legal planning
system, too. As the member states are under the threat of judicial procedures
before the European Court of Justice, sometimes ending in high fines for
violating the EU Treaty, they try to avoid these consequences by explicitly
referring to the specific articles or wording of the European law in the
texts of their legislation thus avoiding a proper systematic integration
into national law, which is always under the threat to be considered deficient
and potentially violating the higher-ranking European law by European Courts.
In terms of EU jurisdiction spatial planning is related to aspects of environmental
protection, not to social and economic cohesion. The borderline between
both EU policy fields is vague and though the legal framework for them
differs considerably, there are no political indications visible that the
Commission intends the to make the internal borderlines clearer. This has,
of course, implications for the ESDP discussion as well.

6.3. The Role
of the Lawyer : "Notary", not Initiator of Changes

Within the political process of developing spatial planning further
as a public task, the role of the lawyer is less to take the initiative
to create a dogmatic basis for the definition of respective goals, procedures
or organisational structures. German experiences show that planning and
administrative practices have to be developed first based on political
compromises. In a second step lawyers get involved to transform this into
legal forms. So the role of the lawyer can be described rather as a public
notary.

7.
Convergence of Spatial Planning Systems?

Considering planning law and administration at an European scale, there
is a general observation that the various national planning legislations
tend to converge within mid- or long-term periods. The convergence is less
due to harmonising effects of European Legislation but to a kind of autonomous
harmonisation, which applies to member states and non-EU member states
in the same way and which might be caused by the effects of market forces,
technology and information. Though spatial planning is much stronger related
than urban and sectoral planning to what can be characterised as the political,
constitutional, legal and administrative culture of the various states,
the theory of convergence appears to apply to spatial planning as well.
A major problem remains the language problem, as the mutual understanding
can not be resolved only a third languages basis (e.g. English); so bi-lingual
glossaries, as edited by the German Academy for Spatial planning in particular
for the east-European and Baltic Sea neighbouring countries are needed.

A first step on the way of convergence in terms of the governmental
organisation of spatial planning appears to be that spatial planning powers
and jurisdictions tend to be connected within the ministerial structure
with major sectoral taks as in particular with transport and communication
or regional development, resulting in long, difficult to remember designations
of these complexly tasked national ministries.

CEMAT (Conférence européenne
des Ministres responsables de l'aménagement du territoire) the committee
in charge of the preparation of the formal and informal meetings of CEMAT
ist the Committee on Spatial Development (CSD- Comité de développement
spatial). CEMAT is not an organisation of the European Union (EU), but
derives its international legal status from the Council of Europe. In the
mid-eighties CEMAT passed the European Regional/Spatial Planning Charta,
which had major importance for initiating European cross-border spatial
planning activities

European Spatial Development Perspective,
First official draft, adopted at the informal meeting of the Ministers
responsible for Spatial Planning of the EU at Potsdam, Mai 1999.

Principles for a European Spatial Development
Policy, Results of the meeting of the informal meeting of CEMAT, Leipzig,
21-22 September 1994, Bundesministerium für Raumordnung, Bauwesen
und Städtebau, Bonn 1995. Most EU- related documents are available
either by the Office for Official Publications, Luxemburg (on charge) or
under http://europa.eu.int or http:// inforegio.cec.eu.int.,